concurring in the result.
Domestic violence is unacceptable. I write, however, to urge we not lose sight of the best interests of the child.
The majority, referring to N.D.C.C. § 14-09 — 06.2(l)(j), states: “The presumption places an emphasis on domestic violence as the paramount factor in a custodial placement when credible evidence of domestic violence appears.” This truncated statement omits the ultimate concern in child custody decisions — the best interests of the child.
N.D.C.C. § 14-09-06.1 still provides:
“An order for custody of an unmarried minor child entered pursuant to this chapter must award the custody of the child to a person, agency, organization, or institution as will, in the opinion of the judge, promote the best interests and welfare of the child. Between the mother and father, whether natural or adoptive, there is no presumption as to who will better promote the best interests and welfare of the child.”
And N.D.C.C. § 14-09-06.2 still provides subsection (j), as well as its other subsections, are “factors affecting the best interests and welfare of the child” to be considered and evaluated by the court. The suggestion in Krank v. Krank, 529 N.W.2d 844, 848 (N.D.1995), that once the presumption is raised, the abusing parent may not be awarded custody unless the other parent is unfit, is contrary to the statute. If the legislature had so intended, so stating would have been a simple matter.
The best interests of the child when clearly and convincingly established still prevail over other considerations. See N.D.C.C. §§ 14-09-06.1 and 14-09-06.2(1). As I wrote in Heck v. Reed, 529 N.W.2d 155, 166 (N.D.1995) (Sandstrom, J., concurring in the result), “clearly the legislature intended a high level of compelling evidence to award custody to a perpetrator of domestic violence.” When thus established, the best interests of children cannot be ignored, and children cannot be used to their own detriment to punish a parent.
Here, the majority recites evidence which reflects domestic violence committed by both parents. The majority then ignores the alleged violence committed by the mother, and focuses exclusively on that of the father. Subsection (j) applies equally to men and women. The stereotyped assumption that all men are more powerful and violent than all women is unworthy of our judicial system. Participants in our legal system are entitled to be judged as individuals, not based on stereotypes.
When there is credible evidence both parents have committed domestic violence, the presumption of subsection (j) applies to each. N.D.C.C. § 14-09-06.2. The implication of Krank at 850, that in cases of domestic violence by both parents, the violence of relationship should be somehow scored like a boxing match, with the presumption applying only against the one scoring the most points, has no basis in the statute.
I would remand for specific findings, including those relating to the domestic violence committed by each parent. In the final analysis, the trial court, guided by the statutes, should award custody based on the best interests of the child.